3. Reconsiderations
(a) Overview
(b) Making a Request for Reconsideration
(c) Criteria for Granting a New Hearing
(d) Conduct of the New Hearing
(e) Reconsiderations and Stays
(f) Withdrawing a Reconsideration Request or Hearing
(g) Reconsiderations and Court Appeals

This chapter is about general ODSP appeal procedures. For the more specific law and tactics involved in proving ODSP eligibility as a "person with a disability" (PWD) (which is so much of the caseload of the Social Benefits Tribunal) see Ch.9: "Persons with a Disability".

As well, there can be preliminary issues about what sort of Director Decisions are "appealable" to the Tribunal. This issue is covered in Ch.11, s.4: "Director Decisions: Appealable and Non-Appealable Decisions".

While the main procedure described in this chapter is technically termed an "appeal" in fact it is much more in the nature of an original "hearing de novo" (first full hearing) akin to a civil court trial (though with greatly relaxed formality). The procedure allows broadly for presentation of documentary evidence, witnesses, cross-examination and legal submissions.

Despite some criticisms I express in this chapter, the main oral hearing procedures before the Social Benefits Tribunal are robust and - for the most part - straightforward. Properly applied - and complied with by parties - oral hearings provide the oppourtunity for a full and fair hearing of the issues in dispute. My criticisms are mostly focussed on ancillary procedures such as the (relatively new) use of telephone and written hearings, and the (in my view, doomed) early resolution procedures.

It is a testament to these oral hearing procedures and - in particular - to the efforts and compassion of the individual Tribunal members, that the success rate on appeals is quite high compared to the analogous situation in higher court appeals of court judgments (although this can equally be cited as a testament to poor performance at the administrative Decision level: see Ch.11).

A request for an "internal review" (IR) is a mandatory preliminary step in the appeal process [Act s.22]. It is simply a written request to the ODSP Director (NOT to the Social Benefits Tribunal) to "internally review" the decision/s made against the recipient.

No reasons, argument or evidence need accompany the request, but such additions may help to expedite resolution of the issues if the problem can be easily explained or remedied. In particular - and if relevant (as in the case of an ODSP medical eligibility appeal) - there is an express provision allowing the filing of fresh medical evidence at the IR stage [Reg 59(3)].

On the important issue of when to file an appeal after an internal review, see "When to File an Appeal", below in this section.

. COMMENT

While requesting an IR is a legal prerequisite to the filing of an appeal, very few "internal reviews" result in reversals, and the IR process is generally viewed as an unnecessary burden by most concerned - including ODSP workers.

Further, internal reviews operate perniciously in a 'gate-keeping' role. Many recipients and applicants suffer the functional limitations of literacy, language, medical handicaps and cultural intimidation. The more 'stages' in a process thrown in front of them, the more - statistically - will drop out before completion.

In my view, such devices as these (along with phone intake procedures [now thankfully abolished] and increased "verification" standards) likely contributed to the much-touted welfare (Ontario Works) 'caseload reductions' experienced shortly after the revision of social income support legislation in 1998 - and likely the rise in homelessness experienced at the same time.

In my view recent changes in the Social Benefits Tribunal such as electronic (phone) hearings and pre-hearing mediation (the "Early Resolution Program") will operate in a similar gate-keeping fashion. These topics are critically addressed elsewhere in this chapter.

. Form and Content

There is no specified "form" set out in law for a Request for Internal Review. Practically however it should:

be in writing [Reg s.58(2)];

be signed by the applicant/recipient;

include the ODSP ID number (the number on the Notice of Decision) (or, barring this, the recipient's date of birth);

state the date that the decision was "made" (ie. the date of the issuance of the Notice of Decision, NOT the date the Decision was effective [see Ch.11 "Director Decisions", s.2(f): "When Decisions are Made, Effective and Final"];

state the date that the Notice of Decision was received;

IF REQUIRED DUE TO LATENESS (see below): an EXPRESS (not implicit) request for an extension of the time for requesting the internal review, and the reasons for the request (see "Timelines for Filing and Extensions", immediately below).

A request for internal review is sent to the "Director of ODSP", who is the Ministry's designated head of ODSP, and who operates through staff located in many office locations throughout the province. Requests for internal review are NOT sent to the Social Benefits Tribunal.

Refusals or cancellations of ODSP eligibility on medical grounds are sent to the "Disability Adjudication Unit" (or "DAU"), which is the Director's office that deals with medical eligibility assessment. Requests for internal review should be sent to them at the address on the Notice of Decision.

Most other decisions involve allegations of financial excess, failure to provide information, etc - and originate from the "local office" that your file is administered from. Requests for internal review should be sent to them at their address on the Notice of Decision.

. Timelines for Filing and Extensions

The law states that a request for internal review must be made within 30 days (before an 01 May 2009 amendment this timeline was 10 days) from when the decision is served (or received, whichever is earlier) [Act s.22(2); Reg s.58(1)]. That said, the timeline to conduct an internal review is subject to extension (see the extensive discussion of the Walsh case below). Note that the law deems a mailed notice to have been received (ie. served) on the third day after it was mailed [Act s.50].

The time extension provision reads:

Reg s.58(3)
The Director may hold an internal review even if it was not requested within the prescribed time if the Director is satisfied that the applicant or recipient was unable to request an internal review within that time because of circumstances beyond his or her control.

As a matter of practice, any request for a s.58(3) extension should articulate (with supporting documentation if available) some reason for it. Examples of such reasons typically include: notice not received, notice received late in mail, hospitalization, incarceration, mental disability, illiteracy, etc.

Case Note: Walsh v Ontario (ODSP) (Ont CA, 2012)

This was an ODSP recipient's appeal of the Divisional Court's dismissal of their earlier appeal of a loss before the Social Benefits Tribunal.

One issue considered in the case was the refusal of the Director to extend the time for conducting an internal review under ODSP Reg 58(3), and how that impacted on the appealability of the original decision. The Court of Appeal, citing the clear law that such decisions (to extend time for conducting an internal review) were not appealable by virtue of ODSP Reg 57(1)] ["Decisions that cannot be Appealed"](these are called "prescribed decisions"), reasoned that since the requesting of an internal review is a necessary prerequisite to the commencement of an appeal [ODSP Act s.22(1)], that the Director's refusal to grant a Reg 58(3) extension was essentially fatal to all further appeal rights, both to the SBT and to the courts (although judicial review would be conceivable):

[51] Subsections 22(1) and (2) of the Act allow a person that has received a Director’s decision about eligibility, to commence an appeal of that decision to the Tribunal, provided that an internal review has been requested first. Importantly, the request for internal review must have been made within the prescribed time, in this case 10 days: ODSPA, s. 58(1) [SS: that time is now 30 days]. An extension of time for an internal review can be granted by the Director, if it is satisfied that the applicant did not request such a review because of circumstances beyond his or her control: ODSPA, s. 58(3).

[52] In this case, the Director refused to extend the time for internal review. That decision was, by law, not appealable.

...

[53] Section 23 of the Act also speaks to appeals to the Tribunal, but again requires that an internal review has been requested:

(1) An applicant or recipient may appeal a decision of the Director within the prescribed period after an internal review by filing a notice of appeal that shall include reasons for requesting the appeal.

(2) The Tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension.

While subsection (2) allows the Tribunal to extend time to appeal, subsection (1) makes it clear that an internal review must have been requested “within the prescribed time”.

I think the court's conclusion that a late internal review request is fatal to later appeal rights is an error in legal reasoning. Section 58(3) is not about extending the time to request an internal review, rather it is about the Director conducting an internal review despite the fact that the request for it was made late. The court has conflated the making of a request for an internal review with the actual conduct of one [this confusion is also apparent in paras 57, 58 and 78 of the ruling].

In other words, 58(3) gives the Director the unilateral discretion to conduct the review should it wish to, but it does not to extend the time for requesting one. In fact, there are no provisions in the ODSP regime for extending the time for requesting an internal review.

But those points were not applied here, and no doubt the Director and the SBT will take the view that this gives them complete control over the advancement of appeals involving late requests for internal review - that is, the ability to shut them down by refusing to grant a 58(3) extension. However, a further contradiction remains within the Court of Appeal's own logic which I do not expect to be noticed either. This point turns on the wording of this ODSP Act provision:

ODSP Act
s.22
(1) No appeal may be commenced unless an internal review has been requested.

(2) The request for internal review must be made within the prescribed time.

This prescribed time is now (after a recent amendment) 30 days [ODSP Reg 58(1)]. The Court of Appeal has plainly read s.22(2) as rendering a late request to be void, and therefore a nullity in law. However from that conclusion (and absent of any provision to extend the time for requesting an internal review, as opposed to conducting a late one) - then not only is the primary Director decision unappealable - but so is any decision over which the Director had exercised their Reg 58(3) discretion to conduct an internal review.

This realization points up another flaw in the court's 'nullity' interpretation of a late request for internal review. A legal nullity is something that, despite the efforts of the party attempting to perform the intended legal act, is deemed to have never been done - so there is no request for internal review, not even a late one. A legal 'nullity' by it's nature is not something that you can pick and choose from - on the one hand viewing it as a nullity so that it cannot condition the commencement of an appeal [ODSP Act s.22 (2)], but on the other viewing as a positive legal act conditioning the Director's discretion to conduct an internal review [ODSP Reg 58(3)].

So I think the better view in law is that a late request is still in law a request for purposes of s.22(1), and it is capable of satisfying the ODSP Act's s.22(1) pre-condition that allows an appeal to commence.

That said, we are 'stuck' with the reasoning that the Court of Appeal has adopted on this point. But we do need to acknowledge that the implication stemming from it is that the utility of s.58(3) is really limited to cases where the Director reverses their earlier decision, almost as an act of charity. Any internal review stemming from a late request which confirms that earlier decision is pointless from an appeal perspective since - according to the Court of Appeal at least - the request in law 'never happened'.

In my opinion this case, more than most, illustrates the pointless procedural legal gymnastics that both legislation and the courts have too often forced citizens to engage in before any full hearing can be had into the true legal merits of their grievance. Protestations by judges and others - comfortably ensconced in their secure middle and upper classes lives - that these temporal barriers are necessary to facilitate vague MBA-inspired 'efficiencies' in administrative processes pale in comparison to the manifest injustice of depriving the poorest of the poor of their right to be heard. This travesty is magnified when they are applied, as they are in both OW and ODSP cases, against the physically and mentally disabled amongst us.

. Decision Procedure

There is no elaborate procedure for an IR. The request is made to the Director and a written decision comes back (eventually).

The law states that IRs must be completed by the Director within 30 days from the date the Director receives the Request [Act s.22(3); Reg s.59(1)]. In my experience this timeline is usually missed, without negative legal consequence to the Director's case.

To avoid the applicant or recipient being prejudiced by this delay it has been my practice for years to file an appeal with the Social Benefits Tribunal (with a request for interim assistance, see below) simultaneously with the request for internal review (see "When to File an Appeal", below).

A decision in internal review shall be in writing and shall be delivered personally or by mail to the recipient at their last known address. As of 14 December 2012, electronic delivery may also be used [Reg s.60(1)].

The decision shall state [Reg s.60(2)]:

the original decision (in practice this is not a copy of the first decision, just a recitation of it within the text of the IR decision);

whether that decision is confirmed, set aside or varied,

the reasons for the IR decision;

the effective date of the IR decision.

In practice the reasons stated in an IR decision, like the reasons stated in the original notice of decision, (if they are stated at all) are perfunctory and rarely shed any useful light on what the specific reasons for the decision are.

Note:
A critical discussion of the duty to provide "reasons" in decisions is found in Ch.11, s.2(d): "Director Decisions: Notice of Decision". It applies to original Director's Decisions, IR Decisions and SBT Decisions - all of which are required to contain "reasons".

The IR must be performed by a person other than the one who made the original decision [Reg s.59(2)].

If an IR request is withdrawn, it shall be deemed never to have been made [Reg
s.58(4)].

As a technical note: the Statutory Powers Procedures Act, a general Ontario statute governing any public body exercising a statutory power of decision is NOT applicable to the IR process [Act s.22(4)] (of course, it IS applicable to the Tribunal appeal process: readers can refer to the SPPA program in this website).

. When to File an Appeal

A chronic (and important) problem is: WHEN - after an IR has been requested - can an appeal be filed? In other words - must the recipient wait for the IR decision?

Note firstly that it is a mandatory requirement that a recipient REQUEST an IR before filing an appeal to the Social Benefits Tribunal:

Act s.22(1)
No appeal may be commenced unless an internal review has been requested.

A further provision provides:

Act s.23(1)
An applicant or recipient may appeal a decision of an Director within the prescribed period after an internal review by filing a notice of appeal that shall include reasons for requesting the appeal.

The plain corollary of s.22(1) is that IF an IR has been requested, then an appeal may be filed. Yet s.23(1) can be read to mean that no Request for IR may be made until AFTER the IR process has been completed (ie. a decision has been made). These two provisions leave the situation ambiguous (in which case the interpretation most favourable to the appellant should prevail: Rizzo v Rizzo Shoes [1998] 1 SCR 27). That the 'ungenerous' position is taken by the Director is seen in their statements within Notices and information made available to the public. However it is my consistent experience that the Tribunal will accept appeals filed BEFORE the IR decision is made. It has been my practice for years - in order to expedite matters through the largely useless IR stage - to file appeals with the Tribunal simultaneously with Requests for Internal Review being made to the Director.

The rationale for this is practice and interpretation is plain. To do otherwise would make the recipient's appeal right subject to the delay and legal interpretations of the Director (who is an adversarial party within this quasi-judicial appeal process). This would be a gross violation of natural justice. As well, given the extremely low reversal rates at the IR stage, further delay only acts to delay the eventual resolution of the matter by the Tribunal - and increase the often considerable financial and emotional stress on appellants.

The Social Benefits Tribunal (also "SBT" or "Tribunal") is the appeal body established to hear most social income support disputes [OW Act s.60] - both for welfare (Ontario Works) and ODSP. It's founding legislation is located in the Ontario Works Act, as per the references noted.

It is not a court, though Tribunals like it are often described as "quasi-judicial". Its procedures are simpler and more informal than those of a court.

While decisions of the higher court have a binding precedent authority over the Tribunal, its own decisions do not. As was stated in a leading ODSP case, Director (ODSP) v Gallier [2000] OJ #4541 (QL)(Div Ct):

The Tribunal's decisions are not binding on other panels and the Tribunal does not exercise policy-making or regulatory functions.

The Social Benefits Tribunal ("SBT") is governed by the Statutory Powers Procedures Act ("SPPA"), which has its own program in this website. Of particular relevance to the SBT is the SPPA chapter "Tribunals", which deals with the general law governing most Tribunals in Ontario. This chapter is linked here: Administrative Law (Ontario)(SPPA): Ch.3: Tribunals

Other - more specific - laws governing the SBT are set out below.

While the SBT is one legal entity, in practical terms it has two distinct manifestations - which can sometimes come into conflict: the "administrative" Tribunal and the "presiding" Tribunal. These distinctions - while not formally recognized in law - are discussed immediately below.

. The "Administrative" Tribunal

The "Tribunal" as an administrative entity (hereafter the "administrative Tribunal") focusses on the Chair(person) and tribunal staff, as distinct from the Tribunal members. This manifestation of the SBT establishes SBT practice policy, schedules hearings and conducts the necessary day-to-day logistical activities of the Tribunal. It is distinct from the "Tribunal" in its adjudicative manifestation (hereafter the "presiding Tribunal", see below) - sitting as "panels" hearing cases and issuing "Decisions". These distinctions are very important in practice when determining whether administrative policies and practices are legitimate in law or not [this topic is discussed extensively in Ch.1, s.6(c): "Overview: ODSP Administration: The Legal Status of Policy."]

Tribunal members are provincial political appointees, approved by the provincial cabinet, which is controlled by the party in power [OW Act s.61]. At time of writing there are roughly 20 members in the SBT, but there have been as many as 30 and more at times.

The SBT has a chairperson, any number of vice-chairs, all appointed by cabinet. In practice the chair does not sit actively in cases, though they can. The chair tends to act in an administrative capacity over the other members and as policy-maker. Vice-chairs typically fulfil the functions of the Chair when the Chair is absent or incapable of acting, although technically the Minister of Community and Social Services can appoint anyone to replace the Chair in those circumstances [OW Act s.62].

Of course, the actual day-to-day running of the SBT is done by its staff [OW Act s.63]. The staff member who deals immediately with the Ministry, appellants and their advocates on specific appeals generally is called a "client service representative" ("CSR"). A CSR's caseload is determined by a geographical cachement area (divided up by postal code). In downtown Toronto there are two CSRs. Like any organization, the nature of all staff positions are subject to change from time to time as deemed appropriate by the Chair.

. The "Presiding" Tribunal

The presiding "members" of the Tribunal who are appointed to any particular case are called a "panel" - even if there is just one of them.

Typically the Tribunal sits with one member only, although more can be assigned [OW Act s.64]. In this case one of them will be the 'president' or "presiding member" of the panel. The president has no greater adjudicative weight than any of the other members, but is in direct charge of procedure and decorum during the hearing.

A majority of the panel members, or a unanimity in the case of a two-member panel, constitutes the tribunal's decision [SPPA s.4.2(3)]. Two-member panels should be avoided (but surprisingly are not always) due to the potential for deadlock.

Sometimes the presiding member will bring in new members to observe or train, though they should (and do) ask permission for this if the new member is not there in a formal decision-making capacity.

The SBT sits all over the province [OW Act s.65(1)]. Regular hearings are held in the Tribunal's permanent offices in Toronto (sittings Tuesday through Thursday), and the Tribunal schedules periodic swings through smaller centres where they will sit in public community facilities or hotels.

The Decision of a "presiding Tribunal" is - unless later reversed by appropriate legal process - the Decision of the "Social Benefits Tribunal" as an entire legal entity, regardless of any compliance disputes with internal SBT policy. There is an interesting and extensive body of case law on the extent to which the "administrative tribunal" may interject itself into the activities a "presiding tribunal": interested readers should start with Consolidated Bathurst Ltd v International Woodworkers of America (1990) 42 Admin LR 1 (SCC).

. Basic Principles of Adjudication

Members who decide a case must hear ALL the evidence in a case [OW Act s.66(4)]. For instance, if a Tribunal member becomes sick and cannot complete the hearing, then the hearing must start all over again - unless other members were also present during all the evidence who can satisfy this rule.

Further, a member must not 'investigate or consider' the case before it formally commences at hearing [OW Act s.66(2)(a)], and no member can communicate with anyone about the matters involved in the hearing except WITHIN the hearing: ie. with proper notice to the parties and an oppourtunity for the parties to participate [OW Act s.66(2)(b)]. Exceptions from this principle exist for communications by the member to the Tribunal's legal counsel, and communications between other member of the Tribunal (apparently EVEN IF they are not in the panel) [OW Act s.66(3)]. Considering similar provisions under the previous Family Benefits Act, the Divisional Court in Re Cardinal and COMSOC (Director, FBA) 32 O.R. (2d) 65 (1981) allowed an appeal where it found that the Tribunal had inappropriately acted in an investigative role in addition to its adjudicative role (see "Case Law", below).

Like judges, Tribunal members must be impartial and free from conflict of interest or the "appearance" (not just the actuality) of bias in a case. Bias is typically evidenced by previous comments of a member which reflect animosity against or pre-judgment of a party to an appeal, a class of people to whom a party belongs, or of a pertinent legal issue. "Conflicts of interest" tend to be more immediate financial or personal interests.

. Case Law

In Re Cardinal and COMSOC (Director, FBA) 32 O.R. (2d) 65 (1981, Div Ct) the court allowed a recipient's appeal where the tribunal (then the previous Social Assistance Review Board) dismissed the appellant's first appeal on the grounds that the Director had acted appropriately on the evidence before it. The court held that the appropriate role of the tribunal was to decide the correctness of the decision, not to declare on the propriety of the conduct of the tribunal based on the evidence before it (unless of course such conduct was relevant to the primary function of determining the correctness of the decision).

In Dowlut v Ontario [1985] OJ #1103 (Div Ct) the court reversed a tribunal's fact-finding on spousal co-habitation where there was no basis for a negative finding of credibility and a generally cavalier attitude to the submitted evidence. The court spoke against the tribunal acting as a cross-examining party ('usurping the role of counsel'), preferring the operation of the normal adversarial process - even where the appellant was unrepresented.

Gioris v Ontario (Director, ODSP) [2002] OJ #2416 (QL) (Div Ct) was a judicial review application by an appellant who had been excluded from a hearing for disruptive behaviour and outbursts. After warnings from the tribunal and after an oppourtunity to make written submissions on the Director's evidence the case was decided against him. The court endorsed the tribunal's jurisdiction to control abuses of its own process in this fashion.

In Massey v Ontario (Director, FBA) [1982] OJ #1387 (Div Ct) the court allowed a recipient's appeal from a SARB denial on natural justice grounds where - in the course of the appeal hearing - the appellant had relied on the presiding member's comment to the effect that there was 'no need to call witnesses', and then did not call any further witnesses.

Note:
Being told that "witnesses are not needed" is fairly common in SBT practice when a member becomes convinced in favour of the appellant's case (also common), and where no one shows up to make the Director's case. It is a practical signal that the appellant has won their appeal. In Massey above the court recognized the injustice of denying an appeal once the appellant had limited their evidence in reliance on such a comment.

Subject to time extension (see below), an appeal must be filed with the Social Benefits Tribunal within 30 days of the decision becoming "final" [Reg s.61(1)]. The sometimes complex topic of when a decision becomes "final" is discussed in Ch.11, s.2(f): "Director Decisions: When Decisions are "Made, Received, Effective and Final". In most cases however an appeal filed within 30 days of the date that the Internal Review Decision (see above) is dated will be fine.

As noted above, it has been my practice for years to file an appeal with the Tribunal simultaneously with sending a Request for Internal Review to the Director. Requests for internal reviews rarely result in reversals and this practice get things moving faster. In the case of a (rare) successful IR reversal the appeal can always be withdrawn by a simple letter requesting that.

. Timeline Extensions

The Act allows for the time for filing an appeal to be extended by the Tribunal if there are "apparent grounds for appeal" and "reasonable grounds for applying for the extension" [Act s.23(2)].

This extension need not be obtained before filing a Notice of Appeal, so you should go ahead and file a late appeal. Lateness of an appeal is a preliminary issue to be argued before the SBT once you get there.

I have seen SBT members, aware of a late filing, disregard it as an issue where the Director fails to raise it in objection in their written submissions at the hearing. Lateness therefore is not generally viewed as "jurisdictional" (ie. barring the Tribunal from considering the matter even if not raised by a party), but only as a "defence" which must be actively raised by a party to be considered. This is a position consistent with that taken towards limitation periods in general civil litigation.

. Ultimate One-Year Deadline

There is an 'ultimate' deadline of "more than one year after the date of the administrator's decision" [Reg s.61(2)].

In the ODSP case of Walsh v Ontario (ODSP) (Ont CA, 2012) the phrase "the date of the Director's decision" was interpreted to mean when the decision was made, or issued - rather than when it was received, or when (as was argued here) it was adequately appreciated by the cognitively-impaired appellant.

The court reasoned that the date of receipt of a Decision, relevant to the timeline for requesting an internal review [ODSP Reg 58(1)] was not applicable to the s.61(2) one year limitation period in the Act. Interestingly, the Court of Appeal alluded to the possibility that s.23(2) of the ODSP Act (quoted below) could be applied to extend the Reg 61(2) one year limitation, however the court noted that since no such request had been made to the Tribunal the issue was not before it:

ODSP Act
23(2)
The Tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension.

Walsh is mostly of interest for this latter point, that the appeal extension provision of the Act [ODSP Act s.23(2)] may override the one-year limitation period set out in the Regulation [ODSP s.61(2)].

The specific form approved by the Minister of Community and Social Services must be used for a Notice of Appeal [Reg s.61(3)]. It is available through the Tribunal, and a printable copy is linked here:

As a practical matter the paper form comes in four back-to-back pages (ie. two sheets made from a single 11x17" sheet of paper, folded down the middle), with the first two the actual "Notice of Appeal" and the last two being an "Application for Interim Assistance" (see that topic below).

. Contents

As noted, the contents of the "form" of the Notice of Appeal are set by the Minister, and for the most part not by law.

The only legal requirements is that it "shall include reasons for requesting the appeal" [Act s.23(1)]. As noted in the discussion of "Notices of Decision" [Ch.11, s.2(d)], in practice an appellant is usually handicapped from setting out the specific reasons for the appeal because the original notice of decision and IR decision contains little or no useful information to which an appellant can respond. While a recipient may suspect the nature of the reasons it is not fair to be required to "defend in the dark": it is the Director's duty to give coherent and reasonably details reasons to which an appellant may respond.

It has been my (unchallenged) practice for years to insert in the "reasons" section the similarly bald statement: "The Director erred in law and fact-finding" - period. If the appeal is filed late I may add another line or two explaining why and requesting the Tribunal to extend filing time [see sub-section (d) above].

Otherwise the form-required information is mostly straightforward contact and circumstances information. If some questions seem pointless and ambiguous, provide your best guess at an answer - there is little of this that anyone pays any attention to - even at hearing. The forms are poorly designed for their purpose and procedures generally before the Tribunal are relaxed and meant to accomodate people who have little experience with legal matters.

. Service of the Notice of Appeal

Technically an appeal is commenced if and when a Notice of Appeal is served ("filed") with the Tribunal [Act s.23(1); Reg s.61(3)]. Service of the Notice of Appeal on the Director [in the same fashion as making a request for internal review, s.1(b) above] is optional, but a good practice to speed things up.

See sub-section (f) below re "Service of Documents".

. Acknowledgement Letter

Shortly after filing a Notice of Appeal the appellant can expect to receive a letter from the Tribunal acknowledging the filing, citing the assigned appeal file number, and providing the name and contact information of the "client service representative" or "CSR". As noted above in the discussion of the SBT [sub-section (c)], the CSR is an in-house SBT staff person who manages your file in preparation for hearing, essentially performing the functions of a court clerk. They also act as an information officer to assist unrepresented appellants with non-legal (typically procedural) questions.

. Request for Submissions

The Tribunal will forward a copy of the Notice of Appeal to the Director and any other parties [Reg s.62(1)], accompanied by a "request for submissions" from the Tribunal to the Director. Typically this is done at the same time that the "acknowledgement letter" is sent out to the appellant.

Such "Director's submissions" are supposed to be filed within 30 days of the Director receiving the Notice of Appeal and request for submissions [Reg s.62(2)], but as noted below ("Evidence and Submissions Disclosure") that timeline is rarely met - and less rarely enforced.

. Translator Required

A key issue in the Notice of Appeal is whether a translator is required for the hearing. If one is requested the Tribunal will make arrangements for them and they will be paid by the Tribunal. Be sure to address this issue on the Notice of Appeal, or to otherwise communicate it to the Tribunal as soon thereafter as the need is known.

Please note that the Tribunal issued some confusing general Notices in September 2008 which appeared to modify their translator policy, requiring parties to bring their own translators if possible. These have effectively been withdrawn and the old policy of providing translators free of charge on request has been reinstated.

. Other Hearing Assistance Required

As well, if the appellant requires any financial (this is discussed in "Parties", below) or other (ie. handicap facilities) assistance in relation to the conduct of the hearing, be sure to specify this in the Notice of Appeal - or if not there, in writing to the client service representative (CSR) AS SOON AS POSSIBLE afterwards.

In rare cases it is advisable to have a security guard attend at a hearing. If this is desired you should also contact the CSR well in advance to discuss the issue.

Note: this section is largely repeated in Ch.11: "Director Decisions".

. Overview

"Service" refers to the physical action of delivering documents, and the time at which such delivery is considered legally "effective". The date on which a decision or order is deemed to have been received is especially important as it triggers the commencement of any appeal limitation period.

Directors, Ministries, Tribunals and such can develop a bad habit of assuming that their records reflect the final word on the occurrence of administrative events (despite ample experience to the contrary). If the date of a Decision becomes key to an issue, NEVER assume that the date written on it is the date at which it is "made" for purposes of commencing the running of appeal timelines - or even that that is the date upon which the decision is placed in the mail. The importance of this point was illustrated in Re Carson and Director (FBA) (1977), 13 OR (2d) 229 (Ont Div Ct) where the court held - quite reasonably - that a Board Decision was not "made" until it was both mailed - and the mail delay period had run, despite the fact that the Decision was written and dated two months before. The issue in Carson was key to determining whether a filing timeline had been met (it had).

The law of service applying to ODSP both at the administrative and appeal level is a mess of uncoordinated and disparate provisions, varying largely by the type of the document delivered. These types fall out into three: "Notices of (Director) Decision", "Notices of (Tribunal Decision)" and "Other Documents". Service of "Notice of (Director) Decisions" is discussed in Ch.11, s.2(e).

. Notice of Tribunal Decision

Note:
There is no specific mention of how service of a Notice of Tribunal Decision is to be made in the ODSP Act or General Regulation. However the Statutory Powers Procedures Act [SPPA s.18] addresses this topic in detail, even to the extent of setting out a mail delay rule that conflicts with ODSP Act s.50 (which reads "notice ... shall be deemed to be received on the third day following the date of mailing"). By virtue of SPPA s.32 (conflict resolution), the s.18 SPPA prevails, and it is the SPPA s.18 rules that are set out here.

Notices of Tribunal Decision may be mailed (to the last known address), faxed or e-mailed. Mail service shall be deemed to be effective five days after mailing [SPPA s.18(2)]. Fax or email delivery shall be deemed to be effective the first non-holiday day after it was sent [SPPA s.18(3)].

Effective date of service may be extended where a party has failed to receive the decision or order by reason of good faith "absence, accident, illness or other cause beyond the party's control" [SPPA s.18(5)].

Note:
The Tribunal may make s.25.1 SPPA rules regarding method and effective date of service of decisions as long as the method used generates a "proof of receipt" [SPPA s.18(1)(4)] and are not in conflict with the above rules [SPPA s.25.1(3)]. However this jurisdiction has not yet been exercised by the Tribunal.

. Other Documents

As discussed below under "Evidence and Submissions Disclosure" [sub-section (n)], there are several rules governing the timelines for disclosure of documents between parties and the pre-filing of documents with the Tribunal. Further, there are many situations at the administrative application and on-going eligibility stages where an applicant/recipient is practically required to "serve" documents on the Director.

Unfortunately neither the ODSP Act, General Regulation nor the SPPA establish any rules regarding the service of such general documents.

Practically however, personal service of a document to a ODSP worker or the ODSP office will likely be viewed as being effective immediately.

As for mail service, it is tempting to have regard to the general "notice" mail delay provisions discussed above [Act s.50] ("third day following the date of mailing"). Since there is no other legal guidance provided, this provision at least provides a reasonable objective standard which can be appealed to. That said, the absence of any specific legal provisions in this regard effectively leaves a reviewing Tribunal or Court with the ultimate discretion in the matter.

. Counting Time

Standard legal service counting rules provide that when "counting time":

the first day does not count, but the last day does;

weekend days and holidays do not count.

For example, a "Notice" mailed (ie. post-marked) on Wednesday the 29th of August does not count that first day, the Wednesday - but counts the Thursday and Friday (two days so far). Saturday and Sunday do not count as they are holidays, and it turns out that in this case the Monday (03 September) is Labour Day - also a holiday. The next day, Tuesday 04 September is the "third day following the day of mailing" and service is "effective" that day.

For what other days are holidays and other general legal rules about "service" see this link to the Small Claims Court program. Note that these linked rules are not - technically - applicable to ODSP or SBT matters, but they may sometimes be applied by analogy:

Of primary importance in considering an appeal to the Tribunal is - what exactly can the Tribunal do for you? In most cases this is not a complex problem as the appellant simply wants the Tribunal to "reverse" the Director's Decision and re-instate (or start) the income support the appellant feels they are entitled to.

However when things are not this simple, the issue of jurisdiction may need to be explored. This issue tends to break down into two sub-issues: "remedial jurisdiction" (what can the Tribunal order to be done) and "subject-matter jurisdiction" (what law can the Tribunal consider). Another related topic: "party jurisdiction" (ie. who can raise matters before the Tribunal), is discussed in s.1(h) "Parties", immediately below.

. Remedial Jurisdiction

Simply, the Tribunal may [Act s.26(1)]:

- Deny:

Deny the appeal, which has the effect of confirming the Director's original decision;

- Grant the appeal IN FULL:

Which has the effect of cancelling the Director's original decision, in which case the original Notice of Decision can be disregarded and eligibility re-instated accordingly;

- Grant the appeal IN PART:

Same as above, except the original decision will be modified as per the terms set out in the Tribunal's Decision;

- Refer Back with Directions

"refer the matter back to the Director for reconsideration in accordance with any directions the Tribunal considers proper".

This is the least-used Tribunal remedial authority. It typically arises were the Tribunal finds that the Director has somehow erred in law or fact-finding and because of that never moved on to the next legal step required for deciding the case. Sometimes the Tribunal will just do this next step themselves based on the evidence before it, or it will 'send it back' to the Director to do. It will tend to 'send it back' when the next required legal step is one calling for the exercise of discretion by the Director.

Another, perhaps redundant, way of saying this is:

s.29(3) OW Act
The Tribunal shall not make a decision in an appeal under this Act that the Director would not have authority to make.

An important issue which will be discussed later (see s.8: "Ontario Human Rights Code", below) is that the Tribunal's remedial jurisdiction IS NOT expanded when other law (such as the Ontario Human Rights Code) is being argued. The Tribunal can still only: deny, grant (in whole or part), or refer-back with directions. For instance, the Tribunal cannot declare laws invalid or void - this can only be done in civil cases by the higher courts (ie. Ontario Superior Court or above).

Regardless, the Director is obliged to obey the Tribunal's decision [Act s.26(3)], and such a Decision is effective immediately [Act s.26(4)].

. Subject-Matter Jurisdiction

There are also restrictions on some laws that the Tribunal can consider and apply in its proceedings. These include:

- Constitutional Validity

The SBT cannot inquire into or decide the constitutional validity of an Act or Regulation [OW Act s.67(2)(a)]. This prohibits the Tribunal from hearing issues raised under the Canadian Charter of Rights and Freedoms such as equality rights claims, and as well challenges to legislation based on federal division of powers [eg. arguing that the subject-matter of a provincial law is solely within federal jurisdiction and as such the law is "ultra vires" (beyond jurisdiction)]. (See "Canadian Constitution and Charter of Rights and Freedoms", below).

Remember from Ch.1 "Overview" the distinction between Acts and Regulations, especially how Regulations tend to spell out more specific, detailed rules to realize the larger objectives of the legislation. In ODSP law, s.55 of the Act lists the authority that cabinet has to make regulations under the ODSP Act. This authority has been used in making several regulations, most particularly ODSP General Regulation 222/98, which is often referenced in this program.

However if someone thinks that a regulation makes rules that are NOT authorized under the main ("parent") legislation, then the regulation (or more often part of it) can be challenged and perhaps even struck down in court as being "utra vires" (beyond jurisdiction).

However the Tribunal CANNOT rule on ultra vires regulations and such cases must be taken to a court. The case of Re Merrick and Ontario (Director, VRS) 49 OR (2d) 675 (HC, 1985) is an example of an "ultra vires" (and improper delegation of authority) argument in an older Ontario social income support context (vocational rehab services). The case combined several appeal and judicial review proceedings at once.

The "parties" to a proceeding are those - typically - entitled to full participation on an equal basis with other parties (ie. receipt of documents and Notice of Hearing [Reg s.62(1)(3),63(1)], attendence at hearing, adducing of evidence, making of legal submissions, etc).

Normally the only parties to an appeal are the applicant/recipient and the Director. However the Tribunal may, at its own initiative or on request of an existing party, add other parties as they see fit [Act s.23(4)]. This discretionary adding of parties should be based on "common law" principles of legal interest and ability to participate constructively in the proceeding. It conceivably could involve "public interest intervenors" (for which there are separate legal principles beyond the range of this program) but to my knowledge this has never been attempted.

In the unusual circumstance where ODSP is being administered by a "delivery agent" [Act s.39], then that delivery agent is under a duty to notify the Director of ODSP of "prescribed appeals" and the Tribunal will add the Director as a party to the appeal if the Director so requests [Act s.24]. I am unaware that such delegation has ever taken place and there appears to be no regulation setting out what appeals are "prescribed" for this purpose.

. Spouses

As well, spouses of applicants or recipients WILL be added as parties if the Director has issued them notice of overpayment relating to a former or current benefit unit in which they were a member [Act s.23(5)]. In such cases the spouse may participate in the recipient's appeal as a party. If the main recipient has not commenced an appeal a spouse may file one themselves, but spouses may not file a separate appeal where the recipient already has one filed [Act s.23(6)].

For a discussion of the issue of "joint liability" of a former spouse for an overpayment incurred when they were in a benefit unit with an applicant, see Ch.11, s.3(g): "Director Decisions: Overpayments: Joint Liability Amongst Recipient and Spouse".

. Financial Aid

The Tribunal may assist any party (or witness) who would experience "financial hardship" with "travelling and living expenses necessary to enable his or her attendance at the hearing" [OW Act s.66(5)].

Such requests should be brought to the attention of the "client service representative" as soon as the need is known. With respect to "witnesses", see that topic below.